Insist on Using Objective and Legitimate Criteria

Mediation Minute

Define the terms of fair

Approaching mediation or negotiations requires that the parties agree on what criteria to use to determine what is a fair agreement. Determining these criteria before engaging in negotiations will help parties to articulate the basis for their positions. It can also help to ease tensions and rationalize the process.

The criteria must be objective, legitimate and practical. Complicated formulas or unreasonable positions will complicate the discussion. Examples of possible fair and objective criteria are:

  • Market value;
  • What a court would decide;
  • Legal precedent;
  • Moral standards;
  • Scientific judgment/expert opinion;
  • Equal treatment;
  • Professional standards; such as Generally Accepted Accounting Principals                                                         
  • Tradition/custom;
  • Efficiency;
  • Reciprocity;
  • Costs; and
  • Actual damages allowed by statue or case law.

If the parties are unable to agree on an objective standard, they should agree on an objective person to select the standard. Once the standard is selected, the parties should bring facts, documents and sound reasoning to support their claims, offers and counter-offers. From there a productive discussion can begin.

The reason a number of negotiations or mediations have been unsuccessful is because a lawyer has not explained the law to his client; a party wants a million dollars when even if they won at trial, they would only get $50,000;  a third party (spouse, relative, friend) is offering erroneous advise and parties get unreasonable expectations at the outset of negotiations; a defense lawyer is overly aggressive about the chance of winning the matter.  Set objective and legitimate expectations to enhance the ability to achieve a win-win settlement.